Brexit and Employment Law - just business as usual?

by Michael Farrelly, Solicitor, Excello Law

November 24 2016 - Since the UK's decision to leave the European Union, uncertainty surrounding the legal implications have been widespread; particularly within the UK employment law landscape. As a substantial component of UK employment law is grounded in EU law, withdrawal from the EU could translate into UK employment rights currently guaranteed by EU law no longer being guaranteed.

This current state of uncertainty is welcomed by neither employees nor the organisations which employ them, and the approach which the government has opted to take thus far appears to have been driven, to a very large degree, by a desire to create a sense of continuity. Both the Prime Minister Theresa May and Secretary of State for Exiting the European Union, David Davis, have been at pains to offer reassurances that the rights of workers will remain largely unchanged post-Brexit. However, the politics of the situation dictate that this may be somewhat easier to have as an aspiration than to deliver as a reality.

The mechanism which the government has devised to undertake the complexities of the legislative landscape once Article 50 has been triggered will see little change in the immediate aftermath of Brexit. Furthermore, the forces within the party which helped drive the move towards EU withdrawal still carry momentum. Emboldened by the Brexit vote itself and determined to procure as hard a version of that Brexit as possible, one would speculate that the leading advocates of leaving the EU will look upon a radical revamping of employment law as being one of the primary positive outcomes. EU driven employment law has long been seen, in such quarters, as a barrier to business and its growth.

These positions must be kept in mind when considering the likely effect of the Great Repeal Bill, the instrument through which the government intends to deal with the legislative fall-out following EU withdrawal. The bill, which was announced in October 2016 and will be enacted at the very moment at which Brexit becomes a reality - two years after Article 50 has finally been triggered - will have a dual purpose. The first will be the repeal of the European Communities Act (ECA) 1972, but the second effect will impact employment law. When the Great Repeal Bill comes into force, all current EU legislation will be preserved in UK law, leaving the government free to repeal, retain or amend individual aspects of that law at their leisure. The irony of this, of course, is that the 'repeal' bill will, in effect, be a continuity bill, ensuring that nothing changes in terms of employment law, at least in the short to medium term. Thus, the Great Repeal Bill was designed by the government to satisfy the demands of the pro-Brexit lobby in strictly symbolic terms (since the bill won't actually be enacted until after the UK leaves the EU, the repeal of the ECA will be strictly cosmetic), at the same time as avoiding the legislative chaos likely to result following a repeal of EU legislation.

There are, however, at least a couple of issues which are likely to impinge upon the effectiveness of this plan. The first of these is the afore-mentioned input of those pro-Brexit voices likely to be pushing for a swift repeal of what they regard as unnecessary employment rights. The latest voice to join this chorus belonged to Grant Shapps, former chairman of the Conservative Party, who called for a 'sunset clause' to be included in the bill, meaning that any laws emanating from the EU would automatically be removed from UK law after a period of 5 years.

The second issue is the High Court decision taken on 3rd November 2016, ruling that the government does not have the power to begin exit negotiations from the EU without parliamentary approval. The precise ramifications of this ruling remain to be seen. Given that the government had seemed determined to maintain executive control over as much of the process as possible, it seems certain that to force a shift in this approach is at the same time likely delaying the triggering of Article 50 itself.

In terms of employment law this latest development seems set to impact in two ways; firstly, it will slow the process of change and secondly it will further harden the stance taken by those on all sides of the Brexit argument - a process which began virtually the instance the ruling was announced. Whilst it is clear that nothing in the field of employment law looks set to change in the short to medium term, the longer term prospects remain likely to be impacted by the kind of political and ideological machinations which fuelled Brexit in the first place.

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